1601411 (Refugee)

1601411 (Refugee) [2018] AATA 2271 (7 May 2018)
Corrigendum
DIVISION:Migration & Refugee Division
CASE NUMBER:  1601411
COUNTRY OF REFERENCE:                   India
MEMBER:Peter Vlahos
DATE OF DECISION:  7 May 2018
DATE CORRIGENDUM
SIGNED:11 July 2018
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

The words under paragraph 63 should be replaced with:
“For the foregoing reasons, the Tribunal does not find the applicant’s evidence about the disputes which arose between her and her father over her marriage to her now estranged husband and later with her husband resulting in harm to her as she claimed to be credible.”
Peter Vlahos
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1601411
COUNTRY OF REFERENCE:                   India
MEMBER:Peter Vlahos
DATE:7 May 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 May 2018 at 9:40am

CATCHWORDS
Refugee – Protection Visa – India – Particular social group – Arranged marriage – Domestic violence – Witness credibility – Significant delay in seeking protection – Lack of evidence of claims – Country information does not support claims – State protection available – Relocation available – Decision affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 425, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
In accordance with s.431 of the Migration Act 1958, the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 November 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on 31 July 2015 and the application was refused by the delegate of The Department because it did not satisfy subsection 36(2) of the Act.
On 8 February 2016 the applicant made application to the Tribunal for review of the Department’s decision to refuse her application for Protection visa.
On 21 March 2018 the applicant appeared before the tribunal to give evidence and present submissions in favour of her claim for protection.
The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English Languages.
There were no witnesses in attendance at the hearing.
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case
The issue in this case is whether Australia has protection obligations in respect of the [applicant] and for the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Country of Nationality
Based on copies of the applicant’s passport, which was provided to the Department of Immigration and Border Protection[1] and to the Tribunal[2], the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of India and have assessed claims against that country in relation to ss.36 (2) (a) and 36 (2) (aa) of the Act. On the basis of the above-mentioned evidence, the Tribunal further accepts the applicant’s identity as claimed.
Departmental file – Tribunal’s access
[1] [File number] Folio [65]
[2] AAT File no. 1601411 Folios [45-47]
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to material referred to in the delegate’s decision. The applicant was informed by the Department by letter on 5 January 2016 to contact them to arrange for an interview to discuss his claim. However, applicant according to the Department’s file records did not arrange an interview.
Applicant’s visa background
As was referred to in the decision under review, the applicant arrived in Australia on 26 February 2009, as the holder of a Subclass 572 Student visa to enable her to study [a particular course] at a privately-run college in [Australian City 1]. On [a particular date in] July 2009 until [later in] July 2009 the applicant left and returned to Australia. On 18 April 2011 the applicant applied for a further stay Class TU Subclass 572 student visa. In that visa, the applicant included [Mr A] as a dependant. The applicant was granted a student visa on 16 May 2012. On 16 December 2011 [Mr A] was refused as a dependant on the applicant’s student visa application. On 16 May 2012 the applicant applied for a further stay Class TU Subclass 572 student visa and her visa was granted on 27 June 2012 and was valid until 3 August 2013. The applicant lodged an application for Protection visa (XA – 866) on 31 July 2015.
The applicant’s claims for Protection:
The applicant’s claims for protection are as follows:
§The applicant was forced to marry in India by her family.
§The applicant applied for a passport before she married and was successful in applying for a visa to study in Australia.
§The applicant’s family forced the applicant to return to India to get married a few months after she travelled to Australia.
§The applicant claims her husband would force her to have sex with him and would regularly beat her, rape her and sodomise her. She suffered considerable domestic violence.
§Her husband and her family forced her to include her husband on her student visa. They told her not to study but to work and send money back home.
§The applicant returned to Australia and tried to study but her visa was cancelled because she didn’t have money to pay the fees.
§The applicant believes if she returns to India, she will be tortured by her family and parents-in-law and she genuinely fears being killed.
§She cannot seek protection because the police and authorities “turn a blind eye to these things and she fears being killed…”
The Tribunal asked the applicant whether she wished to add or change her claims and the Tribunal was told that she had no further claims to make.
EVidence at the Hearing
Background- personal of the applicant
The [applicant] was born in [a particular town] in the state of Punjab, India. She is [a particular] age. She was married but currently is separated from her husband who the applicant stated had returned to India. The applicant has no children. The applicant has family living in India, which consists of her father and mother. She also has [a number of] sisters. One sister is [married] and is currently in Australia also having made her own application for Protection visa and is currently awaiting its determination. In India, the applicant completed all levels of education – primary and secondary.
In 2009 she decided to further her studies in Australia – seeking to study [a particular course] at [College 1] which was a ‘privately-owned college’. It was her intention to also work for twenty hours per week (as students were allowed) while she studied her chosen vocation.
She was granted a Class TU Subclass 572 Student visa on 26 February 2009 which allowed her to travel to Australia to pursue her studies. However, the applicant stated that in the period while she was in India, her parents applied pressure on her to “get married” (in particular, her father). Indeed, for the purpose of marriage, the applicant left Australia and returned to India to marry in July 2009, [Mr A].
The applicant provided no copies of her Indian marriage certificate and no copies were to be found on the Department’s file.
The applicant stated that her marriage to [Mr A] was an arranged marriage organised by her father with [Mr A’s] parents. The arranged marriage occurred in 2009 and soon after the applicant left for Australia.
The applicant stated that she arrived in Australia for the second time, in July 2009 and proceeded to attend to her studies as a student at [College 1]. The applicant went on say that she finalised her spouse’s visa in 2010 and this enabled her spouse to meet up with her in Australia.
When the applicant’s husband arrived in Australia, the applicant stated that she went to [a particular airport] to meet him. On arrival, the applicant told the Tribunal her husband met with another Indian national (a friend she did not name) and left the airport with him. The applicant stated that her husband came the next day to the house with “his friend” and remained with her. He subsequently became “very abusive” with him for no reason. The next day, the Tribunal was told, the applicant’s husband had left the house. Faced with this problem, the applicant stated that she contacted her husband’s “friend” and visited his home. There she found her husband who told her that he wanted to stay there. When the applicant asked him to return with her home, the husband became “abusive” – verbally towards her and his friend also abused her. The applicant then left the house.
The applicant stated that she reported her experiences to her parents and in particular, to “her father” who told her to “shut up” “do not tell us” and warned her “not to open her mouth” to anyone about it. The applicant went on to say, that her husband’s parent’s refused also to assist her and remained “on their son’s side.”
The applicant also stated that in her conversation with her parents she “told them” that she would report her husband’s “abuse” and “threats” to the local police. In response her parents told her to reconsider her position and to not mention the problem to the police.
The issue was not reported by the applicant to the police.
The applicant stated that she cohabitated with her husband between 2010 and 2011. In 2011, her student visa finished and the applicant wanted to extend her student visa further so that she could continue with further studies.
The Tribunal was also told by the applicant that she had gained a [particular qualification] but when asked by the Tribunal to produce a copy of the [qualification] – the applicant said that “she was unable to locate it.”
For her husband part, the applicant stated that when she applied for a further extension of her visa (her husband also included) his part was not approved because his medicals were not provided. Also, the Tribunal was told that the applicant’s husband wanted to “return to India”. Hence, the husband was applying pressures on the applicant to “return with him” but the applicant did not want to return to India. As a result of the applicant’s refusal to accommodate her husband’s wishes – the husband became “abusive” and poured scorn on the applicant.
After that brief exchange of words, the applicant recollected to the Tribunal that she never saw her husband again. The applicant went on to also say “that a few days later” she “found out” the news that her husband had returned to his family in India.
The applicant stated that her parents could not speak with her husband because (as she said) he “was under a lot of pressure” and did not want to talk to anyone.
The applicant stated to the Tribunal that her husband had also while living with her had “raped” and “sodomised” her but her parents “said nothing” when she told them and “did nothing” about this. The Tribunal noted that the applicant did not provide any further information about these grievous assaults on her person by her former husband.
Thereafter, the applicant decided to carry on with her life and resolved to file divorce proceedings against her husband while here in Australia. The applicant stated that she had no copy or original of her Indian marriage certificate. At first, the applicant paid the Department of Immigration & Border Protection a fee (according to the applicant) of AUD$100 to search the Department’s file of the applicant for the copy of the certificate. Subsequently, that search revealed (according to the applicant) no copy of the certificate and the Tribunal was told that the required document had been taken by the husband with him to India.
Failing to find the marriage certificate on the Department’s file, the applicant spoke with her mother back in India to see if her mother could locate it and provide her with a certified copy so that she could file her divorce application. The applicant added that she spoke only to her mother and had no communication with her father because her relationship with him was very strained.
The applicant stated that her mother’s efforts did not locate the marriage certificate.
The applicant also told the Tribunal that her husband’s family in India had created “problems” for her family. First, they attempted (according to the applicant) to “threaten her mother” by telling her to warn the applicant that if she “did not return to her husband” then, “something bad will happen” to her mother.
The applicant stated that the “threats” of her parents-in-law towards her mother were not reported to the local police. The applicant’s family (as did the applicant) believed that the police “in India” do not provide “any help” because they (the police) are “corrupt”.
The applicant also told the Tribunal that as far as “she knew” there was “no court actions” pending in the Courts in India concerning her issues with her husband and family. Further, there had been no litigation by her husband’s family concerning “dowry” issues.
Having exhausted all the applicant’s avenues to locate a copy of her marriage certificate in India through the efforts of her mother, the applicant contacted her estranged husband in order to ask him for a copy. The applicant stated that her contacts with her husband were through a mutual friend who made the call to him. At first, the Tribunal was told that communication between estranged husband and wife were “friendly” but this situation did not last. The applicant’s husband demanded from the applicant money for the release of a copy of the couple’s marriage certificate.
These discussions continued between the two the Tribunal was told through the app ‘messenger’ and through which the applicant told that her husband posted to her disturbing photographs of “what happened to women in India” if they were not careful. The applicant indicated that her husband posted such photographs in order to directly threaten the applicant and to forewarn her of what he would do to her if she chose to return to India in the future. The Tribunal requested the applicant if she could produce this particular conversation she had with her husband on the messenger app and in particular the ‘disturbing photo’ but the applicant told the Tribunal this was not possible because “something had happened to her phone” and could not make them available to the Tribunal.
The applicant stated that her estranged husband did suggest an alternative avenue to resolve the certificate issue. He told her that he would provide her with a certified copy if the applicant paid her 30,000/- rupees. The applicant thought this demand was inappropriate for a document she had every right to also have a copy. The applicant was asked why not her ‘sister’ (as a family member) could get a copy of the certificate from the Indian authorities. The applicant told the Tribunal that this was “not possible” because her sister had been “disowned” by the applicant’s father and would be unable to retrieve the document as a member of the applicant’s family.
The applicant was asked whether she had made any enquiries to retrieve a copy of her marriage certificate from the Indian Consulate in [Australian City 1] or via the offices of Indian High Commission in Canberra. The applicant told the Tribunal that no such enquiries had been made with the Indian authorities in Australia.
What fears does the applicant have if she was to return to India in reasonably foreseeable future?
The applicant stated that she “feared” her father and her “husband” but she could not tell the Tribunal with any certainty “what could happen” to her if and when she returned to India.
The applicant stated that she felt that since her life change for the worse it has caused for her so many health concerns. However, while being in Australia and despite her many health problems the applicant “felt better” because (in Australia) “women are respected”. The applicant went on to tell the Tribunal that she wanted to complete her studies and then open and run [a business].
The applicant also stated that she had “tried to work” but could not do so because of the “state of her health.”

While here in Australia, the applicant was assisted by “one of her friends” who “pays for her rent”. This is welcome but difficult for the applicant because she feels “like a beggar” and she does not want to “owe money to anyone.”
The applicant identified other issues if she was to return to India?
The applicant stated that her “issue” with her father and her husband and his family was not the only “problems” she would face. The applicant identified to the Tribunal a problem with the Indian authorities locally – at the Consulate which would not issue her a new passport. The Tribunal asked the applicant explain why the Consulate of India in [Australian City 1] would refuse to issue to her a ‘new’ ‘passport’ which would enable her to return to India. The applicant’s explanation was that first, her passport “had expired” and that if she applied for a new passport, the Consulate would refuse her application because “she had applied for a protection visa.” The Tribunal asked the applicant – where did she receive this information? The applicant stated that persons employed at the Consulate “had told her that because she had applied for a protection visa – they would not issue her a passport.”
The applicant stated that any return to India was difficult for her to consider because she feared being located by her father and husband. The Tribunal drew the applicant’s attention to the fact that India was a very populous country and large country geographically and it would be very difficult for her father and husband to locate her. The applicant expressed a different view. According to the applicant if she did return to India she would be “located” by her father and husband. The applicant stated that she would located through her Indian identity card which would be tracked by her father and husband. “Privacy Acts” according to applicant had no real force in India – “anyone could find out where someone lives”. The applicant said that anyone could be found because there is “corruption”. Any can “bride” officials and “get anything”. Both the applicant’s father and husband, according to the applicant “had the means to find her.” However, the applicant provided no further explanation of what “means” her husband and father could employ to locate her whereabouts if she was to return to India. The applicant stated that “…I do not have the proof.”
The Tribunal asked the applicant if it was possible for her to relocate to another part of India away from her family (her father, in particular) and her husband. The applicant said “relocation was difficult in India.”
Psychologist’s Report
Prior to the hearing the applicant submitted to the Tribunal for its consideration a psychological assessment prepared by [Mr B].[3] The applicant first consulted [Mr B] [in] January 2015 and the consultations continued into 2016 and 2017.
[3] AAT File 1601411 Folio [66]
The report concludes that the applicant suffers from “depressive” and “anxiety” symptoms. These have been caused by “family abuse at the hands of her father” and the “expected abuse and harassment at the hands of [Mr A] (her estranged husband).” The report also mentioned that [the applicant] had suffered [medical incidents] while in Australia. Furthermore, it made reference to [the applicant’s] problems with “suicidal ideation” and recommended that the applicant consult with her general practitioner and talk about the taking of anti-depressant medication. The Tribunal was told that the applicant was taking upon instruction such medication as had been suggested to her by [Mr B] in close cooperation with her local general medical practitioner.
Application for Divorce
The applicant also submitted to the Tribunal a copy of her Application for divorce[4] she had lodged with the Family Court in [Australian City 1] [in] January 2018. The hearing of the applicant’s divorce application was scheduled for [April] 2018. The Tribunal noted that the Application was submitted by the applicant to the without the assistance of a lawyer. The Tribunal also noted that the Application did not have accompanying a ‘copy’ of the ‘marriage certificate’. In her ‘statement’ which is attached the applicant explains as follows:[5]
“….We registered our court marriage in the Marriage Registrar Office, District, [in] Punjab, India [in] July 2009 in the presence of [a particular individual] and his mother. Marriage Certificate was issued from the Marriage Registrar office. ….
“….As marriage certificate was issued after that I have reached in [Australian City 1], Australia. So all the marriage related documents including marriage certificate was received by [Mr A]. Now I tried to get my marriage related documents including marriage certificate as I have to apply for my divorce but forcibly [Mr A] is asking for money (blackmail) and using verbal abuse over the telephone (proof attached)….”
[4] Ibid Folio[65]
[5] Ibid Folio [56]
Lateness of the applicant’s Protection application
Finally, the Tribunal asked the applicant why she applied for protection on 31 July 2015 when her student visa had expired [in] August 2013. The explanation provided to the Tribunal by the applicant was that at first, she hoped that her father might “change his attitude” towards her and might assist her but that that “never happened.” The applicant, in the period that passed waited and felt “totally confused”. The applicant did consult with a migration agent who she identified to the Tribunal as [a particular individual] who agreed to assist her with her visa application issues. According to the applicant she paid this migration agent AUD$7000 but after receiving this payment the migration agent (according to the applicant) “did nothing”.
Concluding remarks by the applicant
The applicant told the Tribunal that she wanted to be provided with the “work rights” so that she no longer is reliant on “others” for financial support. The applicant has no confidence in “migration lawyers because “they” do nothing even when they tell persons like the applicant they will assist them.
Findings
The Tribunal does not accept that the applicant is a credible witness for the following reasons:
The Tribunal noted from the evidence provided by the applicant that her problems arose when she conceded to her parents’ request to marry – and in particular, to her father’s wishes to marry ‘his choice’ of husband prior to the applicant undertaking any studies in Australia as was her original intention. As a respectful daughter, the applicant did as she was told. She married and proceeded to include her husband as her ‘dependant spouse’ on her student visa and then she proceeded to Australia to be followed soon after by her husband. When her husband arrived here, the relationship between the two quickly deteriorated. The applicant told the Tribunal that her husband did not support her efforts for study instead he wanted her to return with him to India. The applicant refused and this invited upon her, her husband’s scornful abuse in front of his friends and when the two were alone.[6] The applicant warned her parents about her husband’s attitudes and actions but they did not care. Her parents considered her ‘married’ and should deal with the matter with her husband and his family. This strained relationship came to a climax when the applicant was “raped” and “sodomised”[7] (as she claimed) by her husband. The Tribunal was provided with no specific timeline for this incident. The applicant told her parents about this but was told to “be quite” and they showed no further interest. While the Tribunal accepts that both the applicant and husband may have had differences between them as with regards to the applicant’s ‘real purpose’ for being in Australia, the Tribunal does not find it credible that the applicant had suffered the heinous crimes of ‘rape’ or ‘sodomy’ as she claimed.
[6] See paragraph [25]
[7] See paragraph [28]
These crimes, the Tribunal was told occurred while the applicant was in Australia and yet she made no report of them to the local police here, who would have acted immediately to investigate them and would have prosecuted the husband and jailed him if he was found guilty by a court. What is indeed perplexing to the Tribunal as far as it concerned the allegations of rape and sodomy is the fact that no mention was made of them to her treating psychologist and do not feature any mention in his thirteen page report on the applicant’s mental state. The report mentions ‘family violence’ and future fears of such violence at the hands of her father and husband but no mention is made about the alleged ‘rape’ and ‘sodomy’ committed on her by her husband. Given the importance of these events to the applicant’s life as she claimed, the Tribunal considers it reasonable to expect that the applicant would have been forthcoming and willing to have told her treating psychologist about these events and had them recorded if they were so instrumental to her actual physical and mental wellbeing having deteriorated so dramatically (as she claimed) because of her marriage to an abusive husband. The Tribunal does not accept as credible the applicant’s explanation of her relationship problems between her parents and in particular, her husband or the alleged ‘rape’ and ‘sodomy’ committed on her by her husband. The Tribunal considers that these claims, which the applicant was unable to explain or to expand upon in any meaningful fashion, reflect adversely on the applicant’s overall credibility.
However, the weight given to other inconsistent claims based on a lack of psychological wellbeing relies heavily on the overall credibility on the applicant’s claim or the internal consistency of the specific claims. The Tribunal is not satisfied the abovementioned inconsistencies at the hearing were directly related to the applicant’s psychological well-being and finds these inconsistencies were due to the applicant embellishing or fabricating critical aspects of her claims for migration purposes and not because the applicant had genuine fear of persecution if she were to return to India at the time of application, now or into the foreseeable future. The Tribunal is satisfied that the applicant was given a real and meaningful opportunity to give evidence and present arguments in relation to the issues arising from the decision under review in a manner that was consistent with s.425 of the Act.
The Tribunal asked the applicant did she complete her studies in [a particular course]. The applicant told the Tribunal that she had successfully qualified and gained a [particular qualification] from [College 1].[8] When asked if the applicant could produce a ‘copy’ (certified) of that [qualification] for the Tribunal records, the applicant said that she could not locate it. Once again, given that the applicant claims that her education was of paramount importance to her and has said she had completed a [qualification] in [a particular course] that document would be in her personal possession and would have been made available without delay, if she was telling the truth to the Tribunal that she had qualified through her studies while here in Australia for a [qualification] in [a particular course].
[8] See paragraph [30]
The applicant was asked why she applied for protection on 31 July 2015 when her student visa had expired [in] August 2013. The explanation provided to the Tribunal was that she delayed in the hope that her father “mind” about her would “change”. When matters with her father did not change the applicant engaged a migration lawyer who was paid and did very little to advance her visa prospects. The Tribunal does not accept this explanation as credible. If the applicant had endured the abuse she claimed to have endured while in India at the hands of her father and later when in Australia by her husband who continuously abused her verbally and physically, one would obviously have expected that once in Australia sound and secure, the applicant would have made a claim for protection sooner than two years after her extension of her original student visa had expired.
For the foregoing reasons, the Tribunal does find the applicant’s evidence about the disputes which arose between her and her father over her marriage to her now estranged husband and later with her husband resulting in harm to her as she claimed to be credible.
For those reasons, the Tribunal is not satisfied that there has been an ongoing dispute between the applicant and her father and estranged husband and as a as a result of this dispute the applicant experienced a abuse verbal and physical and the heinous crimes of ‘rape’ and ‘sodomy’. Therefore, the Tribunal is not satisfied that the applicant was harmed or threatened with harm as a consequence of these disputes which surfaced as a result of her relationship with her father and later – her husband. Moreover, the Tribunal does not accept that the applicant was harmed or threatened with harm as a result of her strained relationship with her husband and father and fears to return to India. In light of these conclusions it has not been necessary for the Tribunal to consider the effectiveness of state protection or re-location although these were discussed with applicant at the hearing.
Further, and in the alternative, even if the Tribunal were to accept that the applicant faces some threat in home state and town from her father and her husband or from his family, which for the reasons given above, the Tribunal considers that the applicant could obtain protection from the authorities or that she could relocate to some part of India where she would not face a real chance of persecution or a real risk of harm.
Moreover, the country information available on India and made known to the applicant at the hearing provides a different picture of the provision of state protection as represented to the Tribunal by the applicant. The Tribunal notes that the Indian Constitution provides equal protection under the law and prohibits discrimination based on race, gender, disability, language, place of birth, caste, or social status. Successive Indian governments at both federal and at state level worked with varying degrees of success to enforce these provisions.
In its 2015 Country Report, the Department of Foreign Affairs and Trade (DFAT) provided a brief overview of law enforcement in India:
State Protection
5.1 Under the Constitution, India’s 29 states and seven union territories have primary responsibility for maintaining law and order. The Constitution empowers the Central Government to intervene in some situations and perform some functions in police matters. The Ministry of Home Affairs is charged with the task of ensuring internal security of the country as a whole. It overseas the recruitment and management of the pan-national Indian Police Service and Central Police Organisations; coordinates the activities of various state police organisations; and provides financial assistance for state police forces….
Police
5.3Each state and union territory maintains separate police forces which, according to the National Crime Records Bureau (NCRB), had a combined strength in 2013 of 1.7 million officers of all ranks (although this varied considerably from state to state). The Indian Police Service is recruited and managed by the Central Government has oversight of a number of armed police organisations (such as the Assam Rifles, the Border Security Force, the Central Industrial Security Force, the Central Reserve Police Force, the Indo-Tibetan Border Police and the National Security Guards) and others (such as the Bureau of Police Research and Development, the Central Bureau of Investigation, the Directorate of Coordination of Police Wireless, the Intelligence Bureau, the National Crime Records Bureau, the National Institute of Criminology and Forensic Science and the National Police Academy).
5.4In general, police in India have broad powers of arrest, including arrest without warrant where they have a ‘reasonable suspicion’ of connection to criminal offenses. To report a crime, citizens may lodge a First Information Report (FIR) at a police station. The Supreme Court has recognised the difficulty faced by some victims of crime in having an FIR registered, and has directed that the registration of FIRs should be mandatory for cognisable offences – those serious crimes for which police do not require a warrant to arrest a suspect.
5.5According to a 2009 report by Human Rights Watch and other sources, the capacity of India’s police forces is limited by poor infrastructure, insufficient personnel, inadequate training, and poor living conditions for low-ranking officers, insufficient remuneration and lack of training and equipment to conduct their duties. India also has relatively few police officers per capita – 129 per 100,000 people, compared to a global average of 350. Only around five percent of Indian officers are female, while only six per cent of Indian police officers are Muslim (despite Muslims comprising 13.4 per cent of the population)….”[9]
[9] DFAT Country Information Report – India – 15 July 2015 – CISEC96CF12827
More recently, the Department of Foreign Affairs and Trade released its Thematic Report – on the Indian State of Punjab[10] which provided the following opinion on the effectiveness of the judicial system in that state:
“Judiciary
5.5Punjab has an independent judiciary, the decisions of which are generally accepted as being fair and unbiased….”
[10] DFAT Thematic Report – Indian State of Punjab – 7 December 2016
While the Tribunal accepts that there are difficulties and inadequacies in the policing system in India generally speaking, having regard to the advice of the Department of Foreign Affairs and Trade the Tribunal finds that the protection provided by the authorities in India (or in the Punjab where the applicant resides) consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system as required by s.5LA (2) (c). The Tribunal considers on the evidence before it that this protection is durable and that the applicant can access it. The Tribunal does not accept that, as the applicant claimed, the police are not willing to protect her because of corruption. The Tribunal therefore considers that effective protection measures as defined in s.5LA are available to the applicant in India and that she therefore does not have a well-founded fear of persecution in accordance with s.5J(2).
Relocation to other parts of India
The Tribunal also discussed with the applicant (at paragraph [50]) whether if she was to return to India she would consider it viable in order to enhance her personal security to relocate to a different state or city in India. The Tribunal noted that the applicant raised fears about returning to her home state to live but did consider relocation a possible option but a difficult one to contemplate but offered no reasons.
According to the country information on Internal Relocation the Tribunal noted that:
“5.13Sections 19(1) (d) and (e) of the [Indian] Constitution guarantee citizens the right to move freely throughout the territory of India and the right to reside and settle in any part of the territory of India, subject to reasonable restrictions in the interests of the sovereignty and integrity and security of the State. The condition of ‘reasonable restrictions’ is left to the interpretation of government and [the] courts. It gives room for laws and regulations that can restrict movement (for example, in places where is unrest or in some border areas) and residence (outsiders cannot buy land in Jammu and Kashmir or in Uttarakhand).”[11]
[11] DFAT Country Information Report – India – 15 July 2015 – see page, 21 CISEC96CF12827
More recently, the Department of Foreign Affairs and Trade in its Thematic Report on the State of Punjab[12] reaffirms information that Punjabis can easily relocate to other parts of India with little or no state scrutiny or restrictions. The report states:
“Internal Relocation
5.8Punjab has a long history of migration, both within India and overseas. There are no significant legal or administrative barriers to internal migration, and many Punjabis (particularly young people) move to other parts of the country for education and employment opportunities….
5.9DFAT assesses that internal relocation may be viable for people in the Punjab seeking to avoid certain types of mistreatment. New Delhi in particular is a popular destination for many people from the Punjab seeking improved economic opportunities and relatively greater social freedoms…”
[12] DFAT Thematic Report – Indian State of Punjab – 7 December 2016, at page 21.

While the Tribunal notes the applicant’s concerns about relocation as an option, the Tribunal considers it an option for her to take. The Tribunal considers on the basis of her evidence that any threat she faces is localised to her state of Punjab or in her home town but not as she claimed in all parts of India. The Tribunal does not accept on the evidence before it that the real chance of persecution relates to all areas of India as required by s.5J (1) (c) and it therefore finds that the applicant does not have a well-founded fear of persecution as required by the definition of a ‘refugee’ in s. 5H of the Act.
For those reasons, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future if she returns to India for any reason. It is not satisfied that the applicant has a well-founded fear of persecution for one or more of the reasons mentioned in s. 5J (1) (a) if he returns to India.
Have regard to the Tribunal’s findings of fact above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to India, there is a real risk that she will suffer significant harm.
Further and in the alternative, even if the Tribunal were to accept that the applicant faces some threat in his home town and in her home state of Punjab, which on the basis of the findings of fact above the Tribunal does not, the Tribunal considers, having regard to the advice of the Australian Department of Foreign Affairs and Trade referred to in paragraphs [66] and [67] above, that the applicant could obtain from the authorities in India (or in the Punjab where she resides), protection such that there would not be real risk that she will suffer significant harm. Likewise, while the Tribunal notes the applicant’s concerns about relocation as an option, the Tribunal considers, on the basis of the advice of the Australian Department of Foreign Affairs and Trade referred to in paragraphs [70] and [72] above, that it would be reasonable in all the circumstances of the applicant for her to relocate to some other part of India, for example to New Delhi, where she will find the opportunities to which she would need to live and to continue with her life and where, having regard to the Tribunal’s findings of fact above, there would not be a real risk that she will suffer significant harm. The Tribunal therefore finds that there is taken not to be a real risk that the applicant will suffer significant harm in India in accordance with s.36 (2B).
Therefore the applicant does not meet the complementary protection criterion (s.36 (2) (aa)) of the Act.
There is no suggestion that the applicant satisfies s.36 (2) on the basis of being a member of the same family unit as a person who satisfies s.36 (2) (a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36 (2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Vlahos
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2018] AATA 2271

7 May 2018

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